2016No876 Fraudulent

Jin○ (78 - 2), franchise

Housing Nowon-gu in Seoul

Daejeon United District Court Decision 201

Defendant

Minister of Justice (prosecutions) and Yellowia (Trial)

Law Firm member, Attorney Lee Jong-ho

Incheon District Court Decision 2014Ra1312 Decided February 5, 2015

Incheon District Court Decision 2015No772 Decided August 27, 2015

Supreme Court Decision 2015Do14187 Decided February 18, 2016

July 1, 2016

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

Although the defendant did not have any criminal intent to obtain money equivalent to the cost of construction or the cost of goods from the victims, the court below found the defendant guilty of the facts charged of this case and erred by misapprehending the legal principles on fraud, thereby affecting the conclusion of the judgment.

B. Unreasonable sentencing

2. Summary of the facts charged in this case and the judgment of the court below on the following grounds: The punishment sentenced by the court below (one year of imprisonment and two years of suspended execution) is too unreasonable.

The summary of the facts charged in the instant case is that the Defendant, as the representative director of ○○○○ Co., Ltd., was performing construction works for each process after being awarded a contract from the head office or the owner of the store to the owner of the store or the store, but the head office and each owner of the building were unable to pay the construction cost due to a lack of cash due to the failure to pay the payment for the completed portion or the payment in kind to the Defendant. However, the lower court convicted the Defendant of the total amount of KRW 18,00 or KRW 28,00 by taking account of the following facts: (a) on June 2012, 201, the Defendant did not pay the total amount of the construction cost to the victim’s main office attached with films to the Defendant and the owner of the building; and (b) did not pay the total amount of KRW 4,00,000 from April 2, 2012 to March 2013 the Defendant did not pay the total amount of the construction cost to the Plaintiff’s 184,26.

3. Judgment of the court below

A. Whether fraud is established through the acquisition of pecuniary profits equivalent to the construction cost should be determined at the time of the contract. Even if it is impossible to repay the construction cost due to changes in economic conditions after the contract is concluded, this is merely a non-performance of civil law, and criminal punishment is not established (see Supreme Court Decision 97Do249, Apr. 11, 1997, etc.). Since the criminal intent of defraudation, which is a subjective constituent element of the crime, is not a confession of the defendant, it is inevitable to determine whether there was an objective circumstance such as the defendant's re-performance, environment, process of crime, process of execution of transaction, and relationship with the victim, etc. It is difficult to determine that there was no possibility of fraud in the event that there was no possibility that the defendant would have been a 20-year criminal intent to commit such a crime, such as the above 20-year criminal intent, even if there is no possibility that it would have been no more reasonable doubt about the crime of fraud. This is also the same as that of the Supreme Court.

B. According to the evidence duly adopted and examined by the lower court, the following circumstances are revealed.

1) On March 201, 201, the Defendant was awarded a contract from the owner of ○○comer or its chain store, the head office for the installation of a new interior interior interior interior interior interior interior interior interior interior interior interior interior interior interior interior interior works from around March 201 to March 2013, the Defendant performed the installation of interior interior interior works in each of the postnatal care centers located in Samsung Samsung, Samsung, Doro, gr, wooden Dong, Songcheon, Seocheoncheon, Nowonwon, and the branch office of the Republic of Korea, and each of the construction works performed in a way that supplies materials from material companies and subcontracts a specific process to the construction company.

2) In the construction of Samsung, Doro, Doro, wooden, and Song-dong branch, most of the materials or companies were paid the price properly. Among them, some of the construction owners did not receive part of the construction cost from the owner of some branch and did not delay the payment to the materials or companies of the construction in question. However, the payment was completed as a substitute for the payment within a month from the initial payment date due to the profits accrued from the construction cost received from other construction works, and the method of paying the said cost. On the other hand, most of the unpaid amount included in the facts charged in the instant case was the price arising from the construction works implemented from around September 2012 to March 2013.

3) Although the Defendant received approximately KRW 3,50,000,000,000,000 which was not received from equity investors, among the construction work price in the secondary branch where they jointly ordered, on October 2012, the Defendant did not receive from the project owner’s financial situation, and instead, calculated 25,000,000,000 of the shares in the Dorae Cable branch from Hu○○○ and transferred it in the form of payment in kind. However, the said shares were more evaluated and commercialized than the above calculated amount, so it was difficult for the Defendant to pay the said amount to the victims of materials and chain construction business at the secondary branch where the material supply or construction work was completed, and it was difficult for the victims to reduce the paid amount in cash to the victims of the oldwon branch and the Korea Development Bank that had already been under way from September 2012.

4) In particular, as to the point of Nowon, the Defendant offered a lump sum subcontract for KRW 650 million to the main owner of the household, and accordingly, the victims, who are the construction enterprises, concluded a verbal contract with the main owner of the household, supplied materials or performed construction works. When the Defendant, who did not receive some of the construction cost from the owner of the building, was unable to pay the subcontract price to the main owner of the household, the victims demanded the Defendant to directly pay the price and thus, the Defendant promised to pay the price directly to some victims.

5) Although there are circumstances in which the Defendant was in arrears with the value-added tax of approximately KRW 29 million around September 2012, and approximately KRW 1440 million around November 2012, the Defendant was due to the fact that the Defendant was unable to receive the value-added tax from the owner of the building of the branch of a postnatal care center, it is difficult to conclude that the Defendant did not have the ability to pay the victims a substitute payment.

6) From March 2012, 2012, the Defendant ordered a total of approximately KRW 9.2 billion to sell a total of approximately KRW 12 billion, and the sales of approximately KRW 2.4 billion to approximately KRW 2.4 billion. Among them, it cannot be deemed that the outstanding amount that occurred to sewage companies, such as the instant facts charged, is about KRW 20 million and the outstanding amount that occurred to sewage companies, is a large amount of KRW 20 million.

C. Examining the above circumstances in accordance with the legal principles as seen earlier, in light of the Defendant’s contractual and contractual practices up to the time, the Defendant appears to have been able to pay the construction cost from the owner of the building in Busan Branch in most of the facts charged in the instant case if the Defendant would have been able to pay the materials and construction cost from the Busan Branch in most of the instant facts charged if he would have been able to receive the payment in cash, not from the owner of the building in light of the contract and the settlement practices of the Defendant up to the time. The Defendant’s unpaid payment is deemed to have played a significant role in the external factors such as changes in economic conditions after the supply of goods and the contract for construction. The evidence submitted by the lower court or by the prosecutor alone cannot be deemed to have been proven without any reasonable doubt that the Defendant had been able to receive the financial benefits equivalent to the price from the time of concluding each

D. Therefore, although the facts charged in this case constitute a case where there is no proof of crime, the judgment of the court below which found the defendant guilty is erroneous in the misunderstanding of facts or misunderstanding of legal principles as to fraud, which affected the conclusion of the judgment. The defendant's above assertion pointing

4. Conclusion

Therefore, the defendant's appeal is reasonable, and the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the defendant's appeal is again decided as follows.

The summary of the facts charged of this case is as stated in Paragraph 2, and since this constitutes a case where there is no proof of a crime as stated in Paragraph 3, it constitutes a case where there is no proof of a crime, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant pursuant to Article 58(2) of the Criminal Act shall be

Justices Kim Hyun-tae

Judges Seo-Un et al.

Judges Dok-il